Administrative law – Dentists – Governance – Licence to practice – Examinations – Foreign graduates – Decisions of administrative tribunals – Dental Association and College – Judicial review – Standard of review – Patent unreasonableness – Limitations
Patterson v. Alberta Dental Assn. And College,  A.J. No 1162, Alberta Court of Queen’s Bench, October 14, 2004, Veit J.
The Applicants had each begun the process of applying to be licensed as a dentist in Alberta for graduates of non-approved dental schools when the licensing process was changed. All of the Applicants had been given multiple opportunities to pass the licensing examinations for graduates of non-approved dental schools prior to the changes in the process. All of the Applicants failed at least a portion of these examinations.
In 2001, the Universities Coordinating Council advised the Applicants that they would have one final opportunity to attempt to pass the UCC examinations before the UCC program was phased out due to the replacement of the Dental Profession Act by the Health Professions Act. Again, each of the Applicants failed the examination.
The Applicants appealed their August 2001 failures to the Executive Committee of the UCC. The appeals were denied.
After August 2001, the Alberta Dental Association & College (the “ADA&C”) decided to create one additional chance for UCC candidates to be assessed with respect to their competency to practice dentistry in Alberta. The ADA&C hired the National Dental Examining Board to hold a one-time transitional examination. Again, all three Applicants either failed or withdrew from the examination.
The Applicants were subsequently denied registration by the ADA&C, and were advised that the only licensing route open to them was to repeat a significant portion of undergraduate training in dentistry. The Applicants appealed this decision to the Council of the College, and the appeal was denied.
The Applicants applied for judicial review of the decision, and also for an order in the nature of mandamus directing the UCC to administer the dental registration process in accordance with its practice prior to December 31, 2001, and to review the decision of the College Council upholding the Registrar’s decision not to register them.
The standard of review of the decisions of the ADA&C and Council was held to be patent unreasonableness. The real decisions under review were decisions on the technical qualifications necessary for the practice of dentistry in Alberta. As such the relative expertise is technical and professional, and greater than that of the courts. Although there was no privative clause to consider, there was also no legislated appeal from the decisions of these bodies. Given that the decisions of the ADA&C and Council were not clearly irrational, the Court could not interfere.
Even if the appropriate standard of review was correctness, the tribunals’ decisions would be upheld. The tribunals did not misinterpret the transitional provisions of the legislation, and all legitimate expectations of the Applicants were met. They “… were permitted to write a number of supplemental examinations; they were advised in advance that the August 2001 examinations were the last examinations to be held by the UCC; they were given another opportunity, without cost to themselves, for registration through the transitional examination process. At every stage, and in every way they had the opportunity of presenting their positions to the various tribunals; there has been no failure of process.” (para. 23)
The Applicants’ request for relief against the University College Council was held to be out of time, since a judicial review should have been commenced within six months after the decision, and the Applicants did not bring their application until two years later.
The applications for judicial review and for mandamus were denied.
To stay current with the new case law and emerging legal issues in this area, subscribe here.